Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Irma E. v. State, Dept. of Health & Social Services, Office of Children's Services (11/22/2013) sp-6841

Irma E. v. State, Dept. of Health & Social Services, Office of Children's Services (11/22/2013) sp-6841, 312 P3d 850

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                    

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



IRMA E.,                                              )  

                                                      )        Supreme Court No. S-15003  

                           Appellant,                 )  

                                                      )        Superior Court Nos.  

         v.                                           )        3PA-11-00019/00020 CN  

                                                      )  

STATE OF ALASKA,                                      )        O P I N I O N  

DEPARTMENT OF HEALTH &                                )
  

SOCIAL SERVICES, OFFICE OF                            )        No. 6841- November 22, 2013
  

CHILDREN'S SERVICES,                                  )
  

                                                      )  

                           Appellee.                  )  

                                                      )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Palmer, Vanessa White, Judge.  



                  Appearances:    Irma  E.,  pro  se,  Wasilla,  Appellant.    Andy  

                                                                                          

                  Harrington,  Assistant  Attorney  General,  Fairbanks,  and  

                  Michael      C.    Geraghty,   Attorney          General,       Juneau,     for  

                                                                                 

                  Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                              

                  Bolger, Justices.  



                  BOLGER, Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION
  



                                                                                                                 

                    Irma  E.  asked  the  State  Office  of  Children's  Services  to  place  her  



                                                                                1  

                                                                                   Irma then repeatedly asked the  

granddaughters with her, but OCS denied her request. 



superior court to hold a hearing to review OCS's decision,  but the superior court denied  

                                                                                             



Irma's requests for a hearing.  Based on AS 47.14.100(m), we conclude that a family  



member who has been denied placement of a child in OCS's custody is entitled to a  



review hearing to contest the OCS placement decision.  



II.       FACTS AND PROCEEDINGS  



                         

                    In January 2011, OCS took emergency custody of Irma's granddaughters,  



                         

Nadia and Tia.  The girls had been living with Irma, their maternal grandmother, while  



                                                                                      

Nora, their mother, was homeless. OCS removed the girls from Irma's home because of  



                                           

allegations  that  Irma's  son  had  been  sexually  abusing  his  own  daughters  and  had  



                                                                                               

sexually abused his younger sister when she was a minor.  OCS was concerned because  



                                 

Irma allowed her son to remain in the home with Nadia and Tia after learning that he was  



being  investigated  by  law  enforcement  officials  for  sexually  abusing  children.    The  



                                                                                   

superior court ultimately determined that the girls were children in need of aid based on  



                                                                                 

Nora's  stipulation  that  they  had  been  placed  at  risk  of  sexual  abuse.    After  several  



placements the girls were placed with a non-relative foster family.  



                    Sometime before April 25, 2012, Irma asked OCS to place the girls with  



                                                                                     

her.  OCS denied Irma's request, stating that she had an unspecified prior history with  



                                                                                                         

their agency.  Irma filed a request for a "review hearing on placement denial" with the  



                                                                 

superior court, using a form provided by the court system.  She alleged that OCS's action  



                                 

was in error, and she offered to "show proof of this with audio and video."  On July 3,  



2012, the superior court denied Irma's request by checking a box on the request form  



          1         Pseudonyms are used for all family members and foster parents.  



                                                              -2-                                                           6841  


----------------------- Page 3-----------------------

                                

marked "DENIED.  Good cause for a review hearing has not been demonstrated."  The  



court did not otherwise explain its decision.  



                     Irma apparently renewed her request with OCS, because on October 5,  



                                                                                 

2012, OCS sent her another denial letter.  This letter listed numerous reasons for OCS's  



                                                                

denial,  including  concerns  that  Irma's  personality  "place[s]  her  at  risk  to  fail  to  



                                                                                

appropriately  protect  the  children."                       The  letter  referenced  Irma's  "co-dependent  



                                                                         

relationship with her adult children" including Nora, which in OCS's opinion rendered  



                                        

Irma's assurance that she would ensure the safety of her grandchildren "highly suspect."  



                                                                                                                     

                     On October 22, 2012, Irma filed a request with the superior court for a  



                                                                     

hearing on OCS's denial of her latest request for placement, again using a form provided  



                                                                        

by the court system.  Irma alleged that OCS's denial was in error; she claimed to be in  



possession of new evidence, and she again offered to prove her point "with audio and  



                                                                   

video."  In addition, she asserted that OCS employees had misused their power, broken  



                                                                    

the law, and lied.  OCS had opposed Irma's earlier request for a hearing but filed a non- 



                                                                      

opposition to Irma's second request and itself requested "the opportunity to set the record  



straight at a contested hearing."  



                                                                                                      

                     On November 8, 2012, the superior court began a trial to determine whether  



                                                                                  

to terminate Nora's parental rights to Nadia and Tia.  The court had intended to take up  



                                              

Irma's placement request on that date, but it did not do so because it had neglected to  



notify the parties.  However, the court informed the parties that it intended to deny Irma's  



request  for  a  hearing  and  that  its  sole  reason  for  considering  a  hearing  was  OCS's  



                                                                  

request.  The superior court then denied  Irma's request for a hearing on the record,  



                                                                                                                          

suggesting that Irma could renew her request if she supplied the court  with  facts to  



support her allegations against OCS.  



                                      

                     Later that month, Irma renewed her request for a review hearing, again  



                                                         

using a court system form, this time supporting her request with a letter to the superior  



                                                                -3-                                                          6841
  


----------------------- Page 4-----------------------

court in which she averred that she was capable of protecting Nadia and Tia from Nora,  



                                                                 

that she had obtained a domestic violence protective order against Nora, and that she had  



                                                                                      

banned Nora from her home.  On December 17, 2012, the superior court denied Irma's  



                                                                   

request by checking the box on the request form that indicated, "DENIED.  Good cause  



for a review hearing has not been demonstrated."  



                                                                      

                     Irma appealed to this court. We granted OCS's motion for a limited remand  



                                                                                                 

to allow the superior court to enter findings and conclusions in support of its decision to  



deny Irma's request for a hearing.  



                                                                     

                     The superior court found that: (1) at the time of the girls' removal Irma was  



                                                                       

aware of the sexual abuse allegations against her son yet she continued to allow Nadia,  



                                                                                                                       

Tia, and her son to reside together in the home; (2) Irma was uncooperative with OCS  



                                                

when the girls were removed; (3) Nora opposed Irma's request that the girls be placed  



                                                                    

with Irma; (4) Irma orchestrated the failure of the girls' foster placement by relaying to  



                                              

the foster parents threats that Nora had made from jail, and Irma's motivation had been  



                                        

to advance her prospects of having the girls placed with her; (5) Irma lacks insight into  



                                                                                                                 

the girls' needs and into the harm her actions have caused the girls; and (6) Irma has a  



                                                                                               

co-dependent relationship with Nora, which would cause any placement of the girls with  



Irma to be "confusing and destabilizing" to the girls.  



                                                                                        

                     In its conclusions of law, the superior court stated that it agreed with OCS's  



                                                                         

denial of Irma's request for placement because of Irma's "apparent failure to protect the  



                                 

two girls at the time of removal, coupled with her previous conduct that had resulted in  



                  

[an]  OCS  investigation,  and  culminating  with  her  manipulation  of  the  girls'  foster  



placement and their mother to achieve her own ends."  



                                                    

                     The main issue on appeal is whether the superior court properly denied  



                                                                                                                           

Irma's request for a hearing to review the OCS decision to deny Irma's request that her  



granddaughters be placed with her.   



                                                                 -4-                                                          6841
  


----------------------- Page 5-----------------------

III.	    STANDARD OF REVIEW  



                                                                 

                   This case requires us to interpret the child in need of aid statutes, which we  



                                                                                                        

do  by  applying  our  independent  judgment,  adopting  the  rule  of  law  that  is  most  

persuasive in light of precedent, reason, and policy.2  



IV.	     DISCUSSION  



         A.	       Alaska Law Provides An Adult Family Member Who Has Been Denied  

                   Placement Of A Child The Right To A Review Hearing.  



                   Alaska law has long demonstrated a preference that children who are in  

                                                                                        



OCS's custody be placed with family members.  Before 2005, AS 47.14.100(e) provided  



                                                                                                

that OCS could deny a request for placement by a child's "relative by blood or marriage"  



                                                                    

only after making "a determination, supported by clear and convincing evidence, that  

                                                                                                                   3   A  

                                                                                               

placement of the child with the relative will result in physical or mental injury." 



relative whose request for placement was denied by OCS had the right to de novo review  

                                                                                                  

of OCS's ruling by the superior court.4  



                                                                                                           

                   In 2005 and 2006 the legislature amended AS 47.14.100(e) to provide, in  



relevant part, that when a child is taken into OCS's custody OCS must place the child,  



                                                                                                                  

"in the absence of clear and convincing evidence of good cause to the contrary," (1) in  



the least restrictive setting that most closely approximates a family and that meets any  



special  needs  of  the  child,  (2)  within  reasonable  proximity  to  the  child's  home,  



                  

considering any preferences of the child and the parents and any special needs of the  



         2         Brynna B. v. State, Dep't of Health & Soc. Servs. ,  88 P.3d 527, 529 (Alaska  



2004) (citing S.S.M. v. State, Dep't of Health & Soc. Servs.,   3 P.3d 342, 344 (Alaska  

2000)).  



         3         Former AS 47.14.100(e) (2004).  The term "relative by blood or marriage"  



was not defined.  



         4	        Id.  



                                                           -5-	                                                   6841
  


----------------------- Page 6-----------------------

                                           

child, (3) "with, in the following order of preference, (A) an adult family member; (B)  



                                                                                                                                                            5  

                                                               

a family friend . . .; (C) a licensed foster home . . .; (D) an institution for children . . . ." 



                        The amended subsection did not include the provision for de novo superior  



                                          

court review of OCS's denial of a request for placement.  Instead, the legislation created  



                                         

a new subsection, AS 47.14.100(m), which provides that when OCS "denies a request  



                            

for placement  with an adult family member or a family friend, the department shall  



                                                                 

inform the adult family member or family friend of the basis for the denial and the right  

to request a hearing to review the decision."6  



                        Thus, the legislature placed the burden on OCS to justify its denial of an  



                                                                                      

adult family member's request for placement.  If a judicial review hearing is requested,  



                                                                                                      

OCS must demonstrate that its decision is supported by clear and convincing evidence.  



                             

The legislature gave a family member the right to request such a hearing, but did not  



impose a burden on the family member to show good cause.  



                                                                                                                        

                        The superior court in this case denied Irma's request for a hearing because  



                                                                                                                                   

of factual findings it made based on OCS's adjudication petition, log notes from the  



                                             

temporary custody and adjudication hearings, Nora's stipulations that the girls were  



children in need of aid (which were not Irma's stipulations), and Irma's testimony during  



            5           The 2005 rewrite of the subsection required OCS to make "a showing of   



good cause to the contrary" when denying an adult family member's or a family friend's       

request for placement.  Ch. 64,  34, SLA 2005.  The 2006 legislation amended the   

rewritten subsection to require OCS to have "clear and convincing evidence" of good  

cause to the contrary before denying an adult family member's or a family friend's  

request for placement.  Ch. 20,  8, SLA 2006.  



                        "Adult family member" is defined as "a person who is 18 years of age or  

                                                                                                   

older and who is (A) related to the child as the child's grandparent, aunt, uncle, or  

                                                                                                                                   

sibling;  or  (B)  the  child's  sibling's  legal  guardian  or  parent."    AS  47.10.990;  AS  

                                                                                                                                  

47.14.100(t)(1).  "Family friend" is not defined.  



            6           Ch. 64,  37, SLA 2005.  



                                                                            -6-                                                                     6841
  


----------------------- Page 7-----------------------

                                                                                                           

the trial to terminate Nora's parental rights.  None of these sources  provided Irma with  



                                                                                            

the  opportunities  she  would  have  been  accorded  had  the  superior  court  held  an  



                    

evidentiary hearing to review her claim that OCS had improperly deviated from the  



placement preferences provided by statute.  



                                                  

                     To the extent that the superior court denied Irma's request for a placement  



                                                                                                                     

review hearing because Irma failed to show good cause for a hearing, the court's ruling  



                                         

was in error.  On remand the superior court must provide Irma with the hearing to which  



                                                                                        

she  is  statutorily  entitled.    At  the  hearing  OCS,  not  Irma,  will  have  the  burden  of  



                                                                                                             

demonstrating, by clear and convincing evidence, that its denial of Irma's request for  



                                                                                                                

placement  was  justified.    Irma  must  be  allowed  the  opportunity  to  confront  OCS's  

evidence against her and to present her position that OCS's decision was in error.7  



           B.        Irma's Request Does Not Involve An Adoptive Placement.  



                     The State argues that the superior court should have treated this matter as  



an  adoption  proceeding  under  AS  47.10.088(i)  rather  than  as  a  CINA  placement  



                                                          

proceeding under AS 47.14.100(e).  Under AS 47.10.088(i) OCS must approve an adult  



                                                          

family member's request to adopt a child "unless there is good cause not to approve the  



                                                                                                                        

adoption."           Unlike  placement  requests  made  under  AS  47.14.100(e),  where  the  



           7         On appeal, the State argues, in part, that we should uphold the superior   



court's  decision  because  "[a]  substantiated   child  protection  services  history  can  

constitute evidence of good cause to bypass the adult family member priority for either         

foster  care  or  adoptive  placement,"   Irma's  "unwillingness  to  cooperate  with  OCS  

established good cause to bypass the adult family member priority for either foster care  

or adoptive placement," and " 'co-dependency' between the adult family member and  

the CINA parent(s) can constitute good cause to bypass the adult family member priority  

                                                                                             

for either foster care or adoptive placement."  We express no opinion on the merits of  

these arguments because the factual findings required to support them were not properly  

                                                                                                              

arrived at by the superior court.  The State will have an opportunity to present evidence  

                                                                           

and to argue those points on remand.  



                                                                  -7-                                                            6841
  


----------------------- Page 8-----------------------

                                                                                                          

controlling standard is clear and convincing evidence, OCS may deny an adult family  



                                                                                                                          8  

member's request for adoption based on a mere preponderance of evidence.    



                     The State argues that Irma's request for placement should have been treated  

                                                                                                     



as a request for adoption  for several reasons:   (1) AS  47.10.088(i) requires OCS  to  

                                                                                           



"identify, recruit, process, and approve a qualified person or family for an adoption  



                                                                                                                                

whenever a petition to terminate a parent's rights to a child is filed," and OCS filed its  



petition  to  terminate  Nora's  parental  rights  to  Nadia  and  Tia  before  Irma  asked  the  



                                                                 

superior court to review OCS's denial of her second and third requests for placement; (2)  



                                         

in December 2011, OCS changed its proposed permanency goal for the girls to a primary  



                                                                                         

goal of adoption with a concurrent goal of reunification (the superior court approved this  



                                        

goal in February 2012); and (3) Irma stated in a letter to the superior court that she was  



"asking to adopt" her granddaughters.  



                     The  State  likens  this  case  to  Tununak,  where  we  determined  that  the  



                                                                                                                                      

superior court properly construed a placement request made in a CINA proceeding as a  



request  for  adoption.    In  that  case  we  noted  that  "even  though  the  placement  



                                                                                                        

determination took place in the context of a CINA proceeding, it is clear that the parties  



were essentially contesting - and the superior court was essentially determining -  



                                  9  

adoptive placement."   But important factors distinguish Tununak from the present case.  



           8         Native Vill. of Tununak v. State, Dep't of Health & Social Servs., Office of                             



Children's Servs., 303 P.3d 431, 444-45 (Alaska 2013).  The review hearing provision       

of  AS  47.14.100(m)  applies  to  requests  for  adoptive  placement  made  under  AS  

47.10.088(i) as well as to requests for CINA placement made under AS 47.14.100(e).  



           9         Id. at 443.  



                                                                   -8-                                                             6841
  


----------------------- Page 9-----------------------

                    In  Tununak, an adoption proceeding was pending in the superior court  



                                                                             10  

when the court determined the child's placement.                                 The child's  foster parents, with  

                                                                                                     



whom the child had been living for more than two years, had filed a petition to adopt the  

                                                      



                                                                                 11  

child  before  the  placement  question  was  resolved.                                The  superior  court  did  not  



consolidate the adoption and CINA cases, but it stayed the adoption proceeding pending  



resolution of the CINA placement issue and it "stated that the future adoption proceeding  

                                    

                                                                                                 12   The superior court  

would be dependent on the placement ruling in the CINA case."  

                                                                                                      



stated that the party contesting OCS's placement decision would not be allowed "two  

                                                                            



bites at the apple," by first contesting placement in the CINA proceeding and then, if it  

                                                                                                                      



                                                                                                           13  

lost that challenge, by contesting placement in the adoption proceeding.                                       As we noted,  

                                                                   



the superior court's order "denied the Tribe's objections to adoptive  placement and  



                                                                       14  

cleared the way for the Smiths to adopt Dawn."                             Thus, it was clear in that case that the  

                                                            



issue being contested at the placement review hearing was the child's placement for  

adoption.15  



          10        Id . at 433.  



          11        Id . at 435.  



          12        Id . at 435, 443.  



          13        Id. at 443.  



          14        Id . at 439.  



          15        The  Smiths'  adoption   of   Dawn  was  finalized  a  few  months  after  the  



superior court issued its decision approving the Smiths as Dawn's placement.  Id. at 439- 

440.  We note that in an analogous case, C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001),  

                                                                                               

a foster care placement morphed into an adoptive placement when the superior court  

terminated the parents' parental rights and the children's foster parents filed petitions to  

                                                                 

adopt the children.  



                                                               -9-                                                         6841
  


----------------------- Page 10-----------------------

                                                                                                            

                   In the present case no adoption proceeding has been initiated.  Neither Irma  



nor the girls' foster parents have filed an adoption petition or otherwise taken steps  



            

toward adopting the girls.  At the conclusion of the termination trial on December 5,  



                                                                                                                  

2012, the superior court terminated Nora's parental rights to the girls.  At the time, the  



          

court approved the girls' recently changed foster family as a CINA placement, in the  



process noting that because the children had been placed with the new family for only  



                                                                                                                      16 

a short time their placement could not yet be considered a placement for adoption.                                        On  



                                       

remand the superior court should consider Irma to have asked OCS to place the children  



                                                                            

with her for CINA purposes under AS 47.14.100(e), not as having asked OCS to approve  



her adoption of the children.   



          C.        The State's Remaining Arguments Are Unavailing.  



                    The State argues that res judicata or equivalent principles of finality bar  



Irma's appeal of the superior court's December 17, 2012 denial of her request for a  



                                                      

hearing because Irma did not appeal from the superior court's July 3, 2012 or November  



                             

8, 2012 denials of her requests for hearing.  But OCS did not raise this issue in the  



superior court, nor did that court rely on this reasoning when it denied Irma's second or  



                                      17  

third requests for hearing.    Instead, the court stated that Irma could renew her request  



                                                                                           

if  she  provided  factual  support  for  her  allegations  of  OCS  wrongdoing,  which  she  



          16        The superior court stated that it was approving the girls' new home "as a  



permanent placement, but I don't think anybody is so cavalier or foolhardy as to think,  

                                                                            

well, we're going to immediately petition for adoption in this case, when the children  

have only been in that home for a few weeks."  The court noted that its decision was not  

intended as a decision on Irma's placement motion, which was not yet ripe. At a hearing  

                                                                                                                  

in January 2013 the superior court noted that adoption continued to be the appropriate  

                                                                                                         

permanency goal for the girls, but that its decision whether their existing placement was  

                           

appropriate for adoption remained months away.  



          17       Indeed, OCS itself requested a judicial hearing on Irma's second request  



for placement.  



                                                            -10-                                                       6841
  


----------------------- Page 11-----------------------

claimed to have done later that month.  In addition, OCS's denial of Irma's second  



request for placement was based on different considerations than its denial of her first  



            18  

                                                                                                            

request.        Thus, OCS's assertion that circumstances were unchanged from one request  



to the next conflicts with its own assertions in decisional documents.  



                     There may be some merit to the State's argument that a family member  



                                                                                                         

should not receive multiple hearings on the same placement request.  But we have noted  



                                                                                   

that courts should proceed cautiously when applying doctrines of finality in children's  



                                                                                                                    

cases because "the circumstances in a child's life are ever-changing and . . . the court's  



                                                          19  

                                                                                

focus must be on the child's welfare."                        Here, Irma did not receive a review hearing on  



                                                                                                    

any of her requests. Under these circumstances, we conclude that res judicata did not bar  



Irma's most recent request for a hearing.  



                     Finally, the State argues that we should affirm the superior court's denial  



                                                                        

of Irma's request for a review hearing because Irma's allegations would not be sufficient  



                                                               

to overturn OCS's placement decision.  We reject this argument.  As noted above, the  



                                                                                 

burden at a placement review hearing is on OCS to justify its denial of an adult family  



                 

member's request for placement; the burden is not on the adult family member to prove  



that OCS's denial was erroneous.   



                                                                                                         

                     Furthermore, the State incorrectly characterizes Irma's challenge to OCS's  



                                           

decision as only involving her history in an OCS case concerning children other than  



          18         OCS's letter denying Irma's first request stated as its sole ground that Irma       



had  a  "prior  CPS  history  that  was  substantiated."    Its  letter  denying  Irma's  second  

request contained a half-page recitation of grounds, including concerns about Irma's  

personality,   her   alleged   co-dependent   relationship   with   her   adult   children,   her  

                                         

willingness  and  ability  to  protect  the  children  from  Nora,  and  her  having  allegedly  

relayed to the foster parents threats that Nora had reportedly made against them.   



          19  

                                     

                    Kent V. v. State, Dep't of Health & Soc. Servs. , 233 P.3d 597, 601 (Alaska  

2010).  



                                                               -11-                                                          6841
  


----------------------- Page 12-----------------------

                                    20  

Nadia and Tia.                            One of the main factors upon which both OCS and the superior court  



relied in this case was Irma's purported co-dependent relationship with Nora, and her  



perceived inability or unwillingness to protect the girls from Nora.  Irma clearly intended  



                                          

to challenge that factor when she informed the court that she had obtained a protective  



                                                 

order against Nora, had banned Nora from her home, and had not allowed Nora to have  



                                                                                                                                                                        

unsupervised contact with Nadia and Tia's biological older sibling, a child whom Irma  



                               21  

had adopted.                         



V.              CONCLUSION  



                                 For the foregoing reasons, we REVERSE the superior court's order denying  



                                                                                                                                                      

Irma's request for a placement review hearing and REMAND this matter to the superior  



court with instructions to hold a hearing to review the OCS decision.  



                20              We agree with the State that the record in the present case "contains scant           



evidence about the proceedings in that separate case."  Should the parties deem such   

evidence relevant to Irma's request, they may present it to the superior court on remand.   



                21              We agree with the State that Irma did not adequately brief her summary                                                                            



argument that Nadia and Tia should be placed in Irma's home because of the presence                                                                                                 

there of the girls' biological sibling - Irma's adopted son - and we therefore decline     

to address that argument.  



                                                                                                    -12-                                                                                                       6841  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC